May 16, 2010

First, that it is, as Ephraim Radner suggests, "a tissue of maybe," and hence not sufficient to make a case for change.

Second, that while it may effectively weaken the prevailing arguments against the licitness of life-long monogamous same-sex relationships, and indeed to some extent undermine the traditional limitation of marriage to mixed-sex couples, still, it does not provide an alternative positive theology for this innovation.

Finally, it is also suggested that the burden of proof lies on my side of the debate.

I see these grounds of complaint as related and I will try to address them in a single response. Part of this is because of the ethical understanding with which I come to the discussion. Not wishing to launch into a long essay on the various schools of ethics, let me just say that I would here espouse the ethical stand in the neighborhood of what are known as Probiliorism and Probabalism — as opposed to the more rigorous and inflexible Tutiorism. I am not alone in this, and in fact my position is the dominant model in contemporary ethics.

Tutiorism is a hard master, and requires that in any doubtful case, one must always follow the more secure or established rule unless the alternative can be shown to be so likely as to be virtually certain. In a legal context we might call that a standard of "clear and convincing" or perhaps even "beyond reasonable doubt." (Much depends on whether one is the plaintiff or the defense; bear with me!)

Probabalism and Probiliorism, respectively, require only that the alternative to following the standard rule be shown to be probable (or in the latter system, more probable) than the standard to allow for liberty. These would be something more like the legal standards of "showing reasonable doubt" or having the "preponderance of the evidence" on one's side.

I realize I'm mixing legal and ethical systems here, but I hope this helps make the distinctions clearer without bringing in too much subtle confusion. But I also do this in part because there is a forensic side to this discussion.

In short, from my perspective, some of my critics are calling for my side to provide clear and convincing evidence of innocence (or licitness) when all I believe we are required to introduce is reasonable doubt as to guilt (or illicitness). We are talking, after all, about the rightness of performing a certain action (or entering a certain estate), which the traditional side sees as a sin if not a crime. As I am on the defense side of the equation, and the burden of the "traditional" side is to show, beyond reasonable doubt, that the tradition is correct, I think I have done my job. Even Dr. Radner admits I present effective counter-arguments to much of the traditional case. In short, "maybe" is enough to cast reasonable doubt upon the air-tightness of the traditional case, and acquit those accused of improper action.

Now, when we get to the question of the church's blessing, a positive act on the church's part, the question of theology comes up. First, I must note once again that the church's teaching is that marriage exists prior to and apart from any "blessing" the church may offer. (The ministers of marriage are the couple.)

But when it comes to providing an alternative positive theology for same-sex marriage, I think my critics misunderstand me. I am not arguing for a separate theology of marriage different from the theology we already have for marriage — such as it is. (I add that proviso because any careful examination of the tradition reveals a number of variant theologies from the patristic era and up through the high middle ages and on through the Reformation. Anglicans tended in general to be closer to Luther's "a matter of the town hall" than to the Roman Catholic "sacrament," when they referred to marriage as "an estate allowed.")

However, I deliberately took the exhortation of the marriage rite in the Book of Common Prayer as my model in examining a theology for same-sex marriage. I believe I have convincingly demonstrated that procreation cannot be held to be an essential element in marriage precisely because, according to the church's teaching, marriage is not forbidden to those who cannot procreate. That would seem to me to be a simple bit of logic (i.e., something not required cannot be essential), and incontestable as it stands. I believe I have also shown that all of the other characteristic "goods" or "ends" of marriage can be shared and realized by a same-sex couple. So whatever "theology" you wish to apply to marriage — apart from one that requires the capacity to procreate as essential, in contravention of the church's tradition and law — can be applied to a same-sex as well as a mixed-sex couple.

I hope that goes a bit towards addressing these critics. And I really do wish some of them would read the book instead of relying on Dr. Radner's review.

25 comments:

I think you make your case very well, Tobias, both in your book and in your response in this post. There are times when tutiorism is appropriate -- when there is clear potential harm if one is wrong -- but I see no actual evidence that this is the case with same-sex marriages. (Of course, promiscuous and exploitative homosexual relationships entail great potential harm, but so do promiscuous and exploitative heterosexual relationships -- indeed, probably even more so.)

"Any careful examination of the tradition reveals a number of variant theologies from the patristic era and up through the high middle ages and on through the Reformation." Quite right. In fact, "on through and including the present day." The gender of the couples aside, the theology of marriage has undergone major shifts in the last two centuries, and even the last half-century, even in conservative Christian traditions (including Roman Catholicism).

If I may, I think that you're conflating ethics and theology in an unhelpful way. How we read and understand scripture as catholic Christians, particularly as Anglicans, relies heavily upon the weight of tradition and in particular the Fathers. The scriptural picture of marriage, for all of the variation in interpretations, is consistently and historically bound up in an understanding of the unity of man and woman from creation. In your book, which I have read, you address the creation argument, relying heavily on Jewish sources. One of the things that I appreciate about your book, as opposed to almost every other liberal book I've read on the subject, is that you do address the creation argument and the appeal to Genesis (though I don't think your counterargument is convincing, but that's another story...)

The way that scripture informs the ethical practices related to sexuality comes out of a deeper reflection from scripture that is embedded in the tradition, and it has always been the case, at least in catholic Christianity, that the way the Church has traditionally read and understood the scripture is authoritative. This doesn't mean, of course, that the tradition can't be proven wrong. Scripture itself is the final arbiter, at least in an Anglican framework. But it very much means that when a novel interpretation emerges that is utterly at odds with how scripture has been read almost from the beginning, the burden of proof is much higher for the one bringing that interpretation than for those adhering to the tradition.

Two comments from someone who cannot possibly hope to discuss this topic on the level at which you have addressed it:

First, Radner and friends say that a very high burden of proof needs to be surmounted before one could consider approving same sex blessings. It seems to me this tells us more about Radner and friends than about the presenting issue. Personally, I think the burden is on the opposition to establish that harm can come from such a modest step. But then, you have just learned something about me.

Second, it seems to me that I have heard all of this before. I am old enough to have lived through the brouhaha about women's ordination. At the time, some great scholarly people said great and scholarly things about how this should not go forward, and I didn't understand a word of it. In retrospect, I am glad I didn't trouble myself with understanding the stuff, because it didn't amount to anything. Sometimes, great big multi-syllabic Latin words are nothing but bluster, meant more to intimidate than to illuminate.

We are talking, after all, about the rightness of performing a certain action (or entering a certain estate), which the traditional side sees as a sin if not a crime. As I am on the defense side of the equation, and the burden of the "traditional" side is to show, beyond reasonable doubt, that the tradition is correct, I think I have done my job.

Hear, hear! (And you absolutely have!)

That would seem to me to be a simple bit of logic (i.e., something not required cannot be essential), and incontestable as it stands.

Wot you said. Those who argue that the marriage of the elderly or otherwise incapable-of-childbearing somehow "partake of the ideal" (even as they fall short) then have the burden of proving how this would not then also apply to same-sex couples (beyond a facile Tab A/Slot B morphology---when even *that* may be missing among the intersexed or injured).

Tobias, I have read your book and reviewed it, albeit from a very layperson's prospective. I found you arguments compelling. As a lawyer, I believe that a reasonable doubt serves as an appropriate standard, especially given that we are discussing the ethics of human sexuality, a subject of some hopefully "growth" over time in terms of our understanding.

I reject the idea that somehow we are required to give more weight to "tradition" on such matters. In fact it baffles me. Are we to do the same for issues of patriarchy, just because our early church fathers were steeped in the concept in their world?

I can't begin to discuss this at a high philosophical level of course, but I do think that you, as well as several others, have made the case more arguable than not. And that is enough it would seem to me, when in the balance real people and their well being as human beings is at stake. Should we risk harm to individuals in this life because we aren't "sure enough" yet? I think it should be the other way around.

I arrived at the same conclusions as Tobias from the Scriptures, using the wrong passages and the right passages in the wrong way. My arguments would not have impressed any scholar, but they worked for me, and I came to what I believe is the right and just conclusion all on my own.

When I read Tobias' book, I stood corrected, but I had no difficulty in accepting his conslusions, because I was already there, having arrived in my own erroneous way.

Popping my head above water from jury duty --- which will likely take the rest of this week!

Thanks for the additional comments.

Bill, you are quite right to extend the variations in theology up to the present. We are, in a sense, is deeply embroiled in our own distinctions as the high Middle Ages' scholars were as they teased apart the issue of consent vs coitus.

Mimi, indeed... and to your further note, thanks!

Fr. J. Thanks for your comments, and I do very much appreciate that you have actually read the book --- and would welcome more feedback as to what you find less than convincing, and hope you will feel free to comment at the other blog.

As to the question you raise, I don't think it is possible to separate ethics and theology on this subject, since it is, properly speaking, a question of pastoral or moral theology and not of dogmatic theology. However, the issue of the weight of tradition is an important one. I would suggest, first of all, that the tradition in terms of scriptural interpretation is not monolithic or uniform -- for, of course, Scripture itself is not uniform in its treatment of marriage, either in its legal constructions or its symbolic representation. It is quite true that the church follows Jesus in focusing on Genesis as the critical point -- but as I say in the book, this appears primarily in opposition to divorce rather than in the development of an extended "theology of marriage." Similarly, the tradition shows considerable variability in its treatment of same-sexuality in the light of Scripture (and to be fair much of the negative argument, even in the Fathers, is not scriptural, but based on natural law sources). But when we look to the Fathers, Scripture plays some unusual roles: Clement, for example, bases much of his argument on the list of forbidden animals -- an argument I daresay no one would advance today. Even the treatment of same-sexuality from a moral standpoint has varied a great deal: from considering it to be among the worst of sins at one extreme, to reducing it to a peccadillo, and --- even if one is not willing to accept the suggestion in his second book, that the church tacitly allowed for same-sex marriage -- as Boswell points out in his first book, even toleration. All this without getting into the more hypocritical realities of churches with harsh condemnations "on the book" but deep secrets in the closets!

Which is simply to say, there are many strands in the tradition itself, and it is not a simple task to disentangle them. It still seems to me that the standard need not be "convincing" but merely showing reasonable doubt as to the condemnation.

Paul, it is certainly true that much scholarship conceals more than it displays. This is why it is always good to check references -- to see if what a scholar claims is being said is actually the case.

Thanks, JCF! Amen.

Sherry, you echo Hooker's disdain for tradition -- he recognized its staying power, but gave the primary seat to demonstrative reason. And the pastoral issue is prime. I was watching a program last night about gay teens, and I recalled a line from a recent conservative blog that suggested "there must be something wrong with homosexuals because so many of them try to commit suicide." One of the young men in the TV program described the abuse that has been heaped on him for years, including being spat upon, physically assaulted, and finding death threats taped to his locker in junior high school. It isn't being gay that leads to suicide, but the venemous assaults of homophobes. Proximate cause, and all that -- for the ethicists out there!

Fr. J said "Scripture itself is the final arbiter." To which I would say, no, God is the final arbiter, and God speaks to us through more than just scripture. I would agree that scripture is the primary path by which we come to understand God's intentions for us. It is in that way that we can refer to scripture as the "Word of God" even though it is expressed in the words of men (somewhat like the way bread and wine become for us the Body and Blood of Christ even though physically they remain bread and wine). Scripture, as it is expressed in the words of men, is limited by the capabilities of understanding of those who wrote those words, and those capabilities were to some extent determined by the culture of their times. I think it is significant that when God gave us the ultimate human expression of his Word, God did so not with words, but in the form of a human person, Jesus of Nazareth. And it is significant that when Jesus used words he did so more often by telling stories than by expounding rules or doctrines. It is also significant that Jesus specifically did not leave written words for us, rather he sent us his Spirit.

All this is a long-winded way of saying that while scripture is primary it is not ultimate. Only God is ultimate, and it is incumbent upon us to listen to ALL the ways in which God's intentions are expressed, and to recognize that there may some of those intentions that we have been unable to understand properly because of the blinders of human culture. One of those blinders is the assumption of male superiority, which only in recent times has started to give way to an understanding of gender equality. This, I believe, is why the two issues that have most upset the Church in our time are women's ordination and same-sex relations, both of which are are threats to the traditional understanding of gender identity and therefore threats to the principle of male dominance.

Thanks, Bill and Mark, for the reminders about the place of Tradition. Bill, you are quite right to challenge the notion that "Scripture is the final arbiter." Depending on what one means by "arbiter" of course. Ultimately, as Hooker says, Scripture, only settles matters about which it speaks plainly. The moment a difference of interpretation arises, or a question concerning the applicability of a given Scriptural passage or set of passages, reason must be applied --- not, I hasten to say in further response to Fr. J., tradition. Here is how Hooker puts it,

What Scripture doth plainly deliver, to that the first place both of credit and obedience is due; the next whereunto is whatsoever any man can necessarily conclude by force of reason; after these the voice of the Church succeedeth. —Laws, V.viii.1

As even the authors of the "traditional" side in the recent report to the House of Bishops state, "The attempt to discover what the Bible has to say about same-sex relationships involves looking to it for answers to questions it does not pose." Said more simply, in the language of Hooker, the Scripture does not "plainly deliver" either a prohibition or approbation of same-sex marriage. There is obviously, within the scholarly community, a considerable difference of opinion both in interpretation and application of Scripture.

As I said in the earlier comment, tradition is far from the uniform tightly woven cord that some imagine it to be. After all, there are periods in Christian history when masturbation was considered a more serious crime than adultery (See Brundage, Law, Sex, and Christian Society in Medieval Europe, 570f. I can't imagine that view prevailing today!); and as I noted earlier the church's judgments on gays (and even more, lesbians) has risen and fallen on a tide that seems more accountable to the current culture than any clear theological or biblical principle.

So, I think we are back to the specific need for demonstration from those who oppose it, of why a faithful, lifelong, monogamous same-sex relationship is immoral --- that is, it is up to the prosecution to prove guilt, in spite of the fact that tradition has always imputed such guilt, to a greater or lesser extent. All that is needed on the defense side is reasonable doubt. And at this point I think the standard of what is on offer has risen to a preponderance: not least in the lives of the many faithful gay and lesbian persons whose ministries have enriched the church. More than that, it is time for the church to repent of the pain and injury it has wrongly inflicted upon so many for so long.

Fr. Haller writes, “Even Dr. Radner admits I present effective counter-arguments to much of the traditional case.” I do not see that Dr. Radner does this at all. He says that Fr. Haller’s book is useful for understanding the arguments deployed by gay-inclusion advocates. He says further that it is “aimed at providing apologetic responses to common traditional Christian objections to homosexual behavior and partnerships” and in this sense “acts as a kind of handbook for pro-gay advocates in the church.” In light of that purpose he says the book “does its job well.” But he immediately follows that assessment by saying that Haller’s arguments will not convince those not already persuaded and maintaining most of the arguments can be and have been refuted.

I don’t see how Radner’s assessment supports Fr. Haller’s case for licitness (or “innocence”), even if the criminal law burden of proof analogy were thought to have validity as a matter of Christian ethics.

I live near Fordham too. All around us are young people suffering for lack of fathers. This business of affirming homosexual behavior isn't intrinsically different than the increasing affirmation of every other form of sex outside the male-female marital bond. And that is what has caused the largest single problem of our era -- the quadrupling of violent crime and incarceration within four decades. This is much more closely related to fatherlessness than to joblessness -- MUCH more. Don't contribute more to this than you already have through your scholarly obfuscations and obscurantism. JOC

Mike W., I didn't mean to suggest that Radner was convinced by my arguments! I don't expect my arguments to convince those whose minds have already been made up in the negative. Those already convinced one way or another are not my primary audience. Further, I don't imagine, extending the analogy, that I have any need to convince the prosecution. Meanwhile, the jury is paying close attention. We shall know their findings in due course, but they do seem to be heading in my direction. Some, at least, formerly on the fence have found my arguments persuasive. Frankly, I don't think Radner has effectively "refuted" anything, and only those who already agree with the "traditional" position find him at all persuasive in that regard.

Anonymous, what a strange comment. Surely you don't imagine that gay and lesbian people are contributing to a lack of fathers, or surplus children. Many gay and lesbian persons act as foster-parents, and so contribute a solution to the problem you describe.

Fr. Haller, I was not maintaining that you thought Radner was convinced by your arguments, but was disagreeing with the apparent implication that he was acknowledging that your counterarguments to the traditional case were “effective” to some degree, in particular one sufficient to support your burden of proof analysis. This seemed, to me anyway, not to be the case.

As to your burden of proof analysis, it seems to me to be another example of what Radner identifies in his review as a failure to place assertions within a scholarly context and consider them in light of alternative viewpoints. To be fair, you disclaim that you want to go into a long essay on ethics and acknowledge that you are mixing legal and ethical categories, yet you want to insist that your position is the “dominant model” and supports your conclusion on burden of proof. I think your conclusion is close to the opposite of what traditionalists maintain, and it is by no means clear choosing the right casuist category is the proper way to approach the issue at hand. It is perhaps notable that even the authors of the recent House of Bishops report on same-sex relationships that are of the liberal persuasion do not seem to make this particular argument.

I suppose I may have read too much into Radner's use of the word "maybe" -- which is the point of my comments here. He says that my book is "useful" for grasping my side of the debate, and it is that effectiveness I'm referring to -- that is, there is enough in my book to introduce (or maintain) some doubt -- not personal doubt on his part, but in the minds of those reviewing the discussion from an on-the-fence position. I don't know what else to make of "maybe" -- though perhaps this was just another of the rhetorical flourishes with which Dr. R. peppers his writing. On the whole he is saying I present a case that he and those who take the "traditionalist" position will find unconvincing, but progressives will find useful in providing "answers."

As to offering a "scholarly" analysis of the various ethical theories that I described in brief, and to the prevalence or dominance of probabilism and probiliorism (or a nuanced position somewhere in between) I refer you to any standard dictionary on ethics. From Alphonsus Liguori through to modern Jesuits this is the main theory at work. The primary reason for this ethical standard not prevailing on this issue, for instance among Roman Catholics who generally use this theory, is the dominance of natural law thinking in that tradition, which leads to a shift into tutiorism when it comes to this particular question -- at least in official Roman Catholic pronouncements on the subject. Anglican traditionalists similarly shift their theoretical/ethical ground when it comes to this issue as well. (For example, birth control and remarriage after divorce are allowed on probabil[ior]istic grounds, but same-sexuality is held to a higher standard.) That is the reason most progressives do not raise the points I am raising here -- and I am only raising them to point out the discrepancy, and the artificially high standard of proof that is introduced in dealing with same-sex marriage.

Your comment about the higher standard is apt. I have been surprised at how many of the same splinter groups that oppose any departure from the "traditional Christian doctrine of marriage" are just as keen to allow that "faithful Christians can disagree" on the issue of women's ordination!

It would seem to me that this tendency to shift the ethical methods used is one more example of exceptionalism for the majority. Shifting ground midstream because the conclusions this could lead to are ones not liked and let's be honest "those people" are not the sort we want in our midst is not equitable. I do think Galatians applies--it's either whole hog for all or not at all. Either law is applied hard and fast to all or we all have to live with some mess, disagreement of interpretation and application, and by faith.

Until I see all Anglican heterosexuals not using any means of contraception, artificial or otherwise, disallowing divorce, treating harshly the unwed different sex couple, etc., it seems to me that what we have here is a hypocrisy of the majority that strains at gnats for others and provides great leniency for one'sself.

I thought the main blog entry above and earlier comments tried to show Fr. Haller’s burden of proof analysis (being based on the “dominant” ethical model) carried the day for his ethical argument. Now it seems that what is claimed is not quite this, but that it should carry the day if it were not unfairly excluded from application to same-sex relationships.

I will conclude by expressing the view that even the modification goes too far. In attaching so much importance to the exercise of probabilistic casuistry, I think there is a failure to distinguish the application of moral law to action in particular circumstances from the determination of what is the moral law in the first instance. Casuistry is the application of moral law to action in specific cases. Granted that the exercise of considering specific cases can help illuminate moral law itself, but the two are not the same. As I understand it, casuistic probabilism was developed mainly as a set of rules for hearing confessions. Richard John Neuhaus was led to associate probabilism with a kind of legal positivism in which “acts are seen as bad because they are forbidden rather than forbidden because they are bad.” Further, the techniques of the confessor "invited the suspicion that one had a better chance at eternal salvation by remaining blamelessly unaware of the harder obligations. In other words, the legal opinion favoring freedom from obligation, if supported by probable opinion, may be followed with moral integrity even if the opinion favoring obligation is more probable.” (First Things, The Public Square, February 2003) From a non-Roman Catholic point of view, I don’t think Tobias’s use of probabilism in an effort to settle the ethical issue is one that would be advanced, for example, by Oliver O’Donovan or by Stanley Hauerwas, both of whom have written about the usefulness of casuistry.

Finally, even viewed within its proper scope, I don’t think probabilism is as dominant as has been suggested. Doubtless much more can be said about all this, but (as a summary) the entry under “probabilism” in The Oxford Dictionary of the Christian Church (Third ed., revised) says probabilism together with equiprobabilism “was the most generally accepted moral system of the RC Church until the Second Vatican Counsel” (note the use of past tense), and that “It is less in evidence in the work of moral theologians writing after the Council.”

Mike, by "should" I merely recognize that "not all are convinced" and that some (such as the late former-Lutheran Dr Neuhaus) do not accept the argument, and create (in my opinion) artificially high standards for particular matters, while winking at others. As far as I am concerned, the case is made, and we are now simply seeing the working out of the process of reception, which at my guess will take another generation.

And I do believe that the principle of casuistry can be applied to the law itself -- as in, "Is this a good or just law." Clearly, there are unjust laws, and there are unjust applications even of just laws. This is what I am discussing here.

I will stand by a statement I've made many times before: homosexual acts, like heterosexual acts, are morally neutral in themselves, and only are virtuous or vicions in the context of the relationship in which they take place. (See the "Koinonia Statement").

Thus, when it comes to the "moral law" I find your artificial division of cases and laws unhelpful. It does, in fact, represent a deep philosophical divide between you and me. I see it as not unlike the division between Jesus and the Pharisees: Jesus embodied broad principles for morality, to be applied in specific cases; the Pharisees constructed a complex bulwark of positive law intended to address all circumstances -- ironically ultimately developing such a complex "system" that it essentially became a kind of casuistry in itself, with a "law" for each case.

I don't accept Neuhaus' characterization of the state of things at all. His approach seems to me to fall back on the actual "legal" rather than the "moral" mindset -- the notion that a particular action is objectively bad (so stated from on high) apart from the situation in which it takes place, the actors themselves, their relationship, and so on. Not to belabor the point, but in the realm of sexual ethics this is precisely where we run into problems: were you to see a clandestine photo of a man and woman in a carnal embrace, you would have no way of knowing if this was a perfectly moral matrimonial encounter, or an adulterous one. The morality of the act does not lie in the act itself. As Jesus makes clear time and again, it is not the "outside" but the "inside" that matters. Ultimately, as far as I can see, all morality comes down to the specifics of intent and relationship, under the overriding principles Jesus laid down: love of God and neighbor, and doing to others as one would be done by.

There are countless other examples: the difference between purchase and theft, between murder and homicide and capital punishment, and so on. As Dr Richard Norris used to say, putting a knife in someone is moral depending on whether it is surgery or assassination.

As to the post Vatican II era, RC moral thinking has made some moves since then, probabalism being "less in evidence" in the work of some moderns (some of whom have in fact moved in a more liberal direction, some to a more Virtue-based ethical mode, some to reemphasize natural law. There has been, on the whole, a move from casuistry in general. But when casuistry is called upon, probabilism is still very much in use among the Jesuits, though perhaps they are keeping quiet about it given the chilling atmosphere since the middle of John Paul II's pontificate. I'd note that the Westminster Dictionary of Christian Ethics states that Probabalism "is the casuistical method most commonly practiced throughout the Roman Catholic Church." (1986)

But homosexuality is very much something that has, in Christianity, been "bad because it is forbidden!" It is interesting that, for all their fluency with the Bible and the natural law tradition, "reasserters" seldom attempt to advance any argument for it being immoral per se, rather than by divine fiat. If "the law" in this instance is indeed what Fr Neuhaus and Mr Watson think it is, it is certainly an example of what the rabbis call "chuk," which Christianity has (with, as Tobias notes, the artificial exception of same-sexuality) not been accustomed to enforcing.

My Contribution to the Listening Process

"a book that honors the Word of God, the faith once delivered, and moves it into our cultural context."—The Episcopal New Yorker

"seeks to meet opponents on their own ground, assessing their arguments carefully and refuting them courteously.... The value ... lies not in its conclusions alone but chiefly in the way Haller reaches them. Whoever is charged with compiling ... resources [on same-sex relationships] will want to add this book to the list."— The Anglican Theological Review